IN THE CASE OF:  

      BOARD DATE:  	25 September 2013

      CASE NUMBER:  	AR20130006365
___________________________________________________________________________

Board Determination and Directed Action

After carefully examining the applicant's record of service during the period of enlistment under review, and considering the Discussion and Recommendation which follows, the Board determined the discharge was both proper and equitable and voted to deny relief.





      
      
      Presiding Officer
      
I certify that herein is recorded the true and complete record of the proceedings of the Department of the Army Discharge Review Board in this case.

THE APPLICANT’S REQUEST AND STATEMENT:

1.  The applicant requests his under other than honorable conditions discharge be upgraded to honorable.

2.  The applicant states, in effect, that prior to deploying to Iraq, he never received a negative counseling, Article 15, or UCMJ action of any kind.  He was promoted ahead of schedule each time.  While in Taji, Iraq, he was attached to an Explosive Ordinance Disposal team as a gunner.  Within his first week, he earned a CAB.  Once on patrol an IED exploded on the right side of his vehicle.  This resulted in him being knocked unconscious and having severe anxiety attacks.  He requested many times to be taken off of the patrol, and was denied every time which only increased his desperation, anxiety, and depression.  Once the deployment was finished and he was back at Ft. Hood, he began to drink heavily in an attempt to deal with his situation.  He sought treatment at Darnell Medical Center, Ft. Hood, but was told by a staff sergeant that he was just malingering and to tough it out.  When he approached his chain of command about his concerns, he was taken into the first sergeant's office where he was berated, and told to “Man up”.  He believes the Army made a severe error in judgment when handling his health concerns.  He never was screened for a TBI even though he was clearly at risk and he never received any follow-up counseling after his initial combat experiences.  Later a gunner who served with him in Iraq committed suicide and during the same time he found out his grandmother was ill and did not have long to live.  These things made his conditions worse.  He requested to take leave and was denied by his unit.  It was at this point that he went AWOL and returned to his hometown of Joplin, Mo.  Lastly, he has seen other Soldiers who used drugs, had longer AWOLs and committed more serious offences that received a general, under honorable discharge.  He is asking for an upgrade, so that he may be able to seek further treatment and screenings from the VA hospital. 

DISCHARGE UNDER REVIEW INFORMATION:

a. Application Receipt Date:			29 March 2013
b. Discharge Received:			Under Other Than Honorable Conditions
c. Date of Discharge:				16 May 2011
d. Reason/Authority/SPD/RE Code:	  	In Lieu of Trial by Court-Martial, AR 635-200 							Chapter 10, KFS, RE-4
e. Unit of assignment:				1st STB (Rear) (Provisional), 1st Heavy 								Brigade Combat Team (Rear) (Provisional) 							Fort Carson, CO 		
f. Current Enlistment Date/Term:		22 September 2005, 4 years
g. Current Enlistment Service:		2 years, 4 months, 9 days
h. Total Service:				2 years, 4 months, 9 days
i. Time Lost:					1,203 days
j. Previous Discharges:			None
k. Highest Grade Achieved:			E-4
l. Military Occupational Specialty:		25N10, Nodal Network Systems
m. GT Score:					123
n. Education:					GED
o. Overseas Service:				SWA
p. Combat Service:				Iraq (060626-070626)
q. Decorations/Awards:			NDSM, ICM-w/CS-2, GWOTSM, ASR, OSR 							CAB
r. Administrative Separation Board: 		No
s. Performance Ratings:			None
t. Counseling Statements:			None
u. Prior Board Review:				No

SUMMARY OF SERVICE:

The record shows the applicant enlisted in the Regular Army on 22 September 2005 for a period of 4 years.  He was 23 years old and had a high school equivalency (GED).  He was trained in and awarded military occupational specialty (MOS) 25N10, Nodal Network Systems.   His record shows he was awarded a CAB.    

SEPARATION FACTS AND CIRCUMSTANCES:

1.  The applicant’s disciplinary history includes accrual of 1,203 days of time lost for being AWOL between 21 September 2007 until his apprehension on 6 January 2011.

2. On 5 April 2011, a court-martial charge was preferred against the applicant for violating Article 86 of the Uniform Code of Military Justice (UCMJ) based on the AWOL offense outlined in the preceding paragraph.  On 7 April 2011, the applicant consulted with legal counsel and was advised of the basis for the contemplated trial by court-martial and of the maximum permissible punishment under the UCMJ, of the possible effects of a discharge under other than honorable conditions, and of the rights and procedures available to him.  Subsequent to receiving this legal counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.

3.  In his request for discharge, the applicant acknowledged that by submitting the request for discharge he was admitting he was guilty of the charge against him or of a lesser-included offense that also authorized the imposition of a bad conduct discharge.  He also confirmed his understanding that if his request for discharge was approved, he could receive an under other than honorable conditions discharge.  He further stated he understood that receipt of an under other than honorable conditions discharge could result in his being deprived of many or all Army benefits, his possible ineligibility for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under State and Federal laws.  The applicant confirmed he had no desire to perform further military service and submitted a statement on his own behalf.  

4.  On 29 April 2011, the separation authority approved the applicant's request for discharge and directed that he be reduced to the lowest enlisted grade and issued a UOTHC Discharge Certificate.  

5.  On 16 May 2011, the applicant was discharged accordingly.  The DD Form 214 (Report of Separation from Active Duty) he was issued shows he completed 2 years, 4 months and 
9 days of creditable active military service and accrued 1,203 days of time lost due to being AWOL.  

EVIDENCE OBTAINED FROM THE APPLICANT'S RECORD:

There are no negative counseling’s or actions under the Uniform Code of Military Justice.

EVIDENCE SUBMITTED BY THE APPLICANT: 

The applicant provided an online DD Form 293; DD Form 214; and a supporting letter from an Army Defense Counsel, dated 7 April 2011.

POST-SERVICE ACTIVITY: 

Attempting to get treatment from the VA. 

REGULATORY AUTHORITY:

1.  Army Regulation 635-200 (Personnel Separations) sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge UOTHC is normally considered appropriate.

2.  Paragraph 3-7a provides that an honorable discharge is a separation with honor and entitles the recipient to benefits provided by law.  The honorable characterization is appropriate when the quality of the member's service generally has met the standards of acceptable conduct and performance of duty for Army personnel or is otherwise so meritorious that any other characterization would be clearly inappropriate.

3.  Paragraph 3-7b provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  

DISCUSSION AND RECOMMENDATION:

1.  The applicant’s request for an upgrade of his characterization was carefully considered.  

2.  The evidence of record confirms the applicant was charged with the commission of an offense punishable under the UCMJ with a punitive discharge.  It also shows that after consulting with defense counsel, the applicant voluntarily requested discharge for the good of the service in lieu of trial by court-martial.  All requirements of law and regulation were met and the rights of the applicant were fully protected throughout the separation process. 

3.  The UOTHC discharge received by the applicant was normal and appropriate under the regulatory guidance.  His record documents no acts of significant achievement or valor and did not support the issuance of an honorable or a general discharge by the separation authority at the time of discharge and it does not support an upgrade to an honorable or a general discharge at this late date.  

4.  The applicant contends that he was having family issues and decided to go home to help.  However, he had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review.  

5.  The applicant contends that he had good service prior to going to Iraq.  The applicant’s service accomplishments and the quality of his service prior to the incidents that caused the initiation of discharge proceeding were carefully considered.  However, this service was determined not to be sufficiently mitigating to warrant an upgrade to the characterization of discharge as shown by the incident of misconduct.

6.  The applicant contends that medical issues contributed to his discharge from the Army.  The applicant’s contentions were noted; however, the service record does not support the applicant’s contention.  The record does show on 7 April 2011, the Defense Counsel, CPT C, stated the applicant sought mental treatment after his deployment.  The mental issues were related to the applicant’s combat experiences and he did receive medication that did not seem to help.  After asking for help for so long and not receiving it, the applicant returned home where his family could help him heal.  The following were determined:

	a.  The applicant had many legitimate avenues through which to obtain assistance or relief and there is no evidence in the record that he ever sought such assistance before committing the misconduct which led to the separation action under review. 

	b.  The evidence of record shows the command attempted to assist the applicant in performing and conducting himself to Army standards by providing counseling and by the imposition of non-judicial punishment.  The applicant failed to respond appropriately to these efforts.

7.  The applicant contends the discharge was unjust because he was falsely accused of malingering, his chain of command did not support him while seeking treatment for his medical condition, and the Army failed to properly screen him for TBI and give proper medical screening.  However, there is a presumption of regularity in the conduct of governmental affairs that shall be applied in any review unless there is substantial credible evidence to rebut the presumption.  The applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support this issue.  There is no evidence in the record, nor has the applicant produced any evidence to support the contention that he was unjustly discriminated, harassed, of failed to receive proper screening.  The applicant’s statements alone do not overcome the government’s presumption of regularity and no additional corroborating and supporting documentation or further evidence has been provided with the request for an upgrade of the discharge.   

8.  The applicant has expressed his desire to have better job opportunities and the benefits of the GI Bill.  However, the Board does not grant relief for the purpose of gaining employment or enhancing employment opportunities.  Further, eligibility for veteran's benefits to include educational benefits under the Post-9/11 or Montgomery GI Bill does not fall within the purview of the Army Discharge Review Board.  Accordingly, the applicant should contact a local office of the Department of Veterans Affairs for further assistance.

9.  The applicant contends that other Soldiers with similar or more severe offenses were given a general, under honorable conditions.  However, the method in which another Soldier’s case was handled is not relevant to the applicant’s case.  Applicable regulations state that each case must be decided on an individual basis considering the unique facts and circumstances of that particular case.

10.  Therefore, the reason for the discharge and characterization of service being both proper and equitable, recommend the Board deny relief.



























SUMMARY OF ARMY DISCHARGE REVIEW BOARD HEARING:

Type of Hearing:   Record Review   Date: 25 September 2013   Location: Washington DC

Did the Applicant Testify?  No 

Counsel: None

Board Vote:
Character Change:  0	No Change:  5
Reason Change:	0	No Change:  5
(Board member names available upon request)

Board Action Directed:
Issue a new DD Form 214:			No
Change Characterization to:		No Change
Change Reason to:				No Change
Change Authority for Separation:		No Change
Change RE Code to:			No Change
Grade Restoration to:			NA
Other:						NA





















Legend:
AMHRR - Army Military Human Resource Record	FG - Field Grade	IADT – Initial Active Duty Training	 	RE - Reentry
AWOL - Absent Without Leave	GD - General Discharge	NA - Not applicable	SCM- Summary Court Martial
BCD - Bad Conduct Discharge	HS - High School	NIF - Not in File	SPCM - Special Court Martial
CG - Company Grade Article 15	HD - Honorable Discharge	OAD - Ordered to Active Duty	UNC - Uncharacterized Discharge  
CID - Criminal investigation Department	MP – Military Police	OMPF - Official Military Personnel File	UOTHC - Under Other Than                           			               Honorable Conditions


ADRB Case Report and Directive (cont)		AR20130006365



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ARMY DISCHARGE REVIEW BOARD (ADRB)

CASE REPORT AND DIRECTIVE



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